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24
Court of Criminal Appeal 17 November 2005

Regina v Kanaan

[2005] NSWCCA 385

Also reported as (2005) 64 NSWLR 527 (2005) 157 A Crim R 238
Homicide
DIRECTION TO JURY ON ALIBI

Citation: Regina v Kanaan [2005] NSWCCA 385
Court: NSW Court of Criminal Appeal
Date: 17 November 2005
Judge(s): Hunt AJA, Buddin J, Hoeben J

Background

The appellant was convicted in the Supreme Court of murdering two men and maliciously wounding a third, following a street altercation outside a hotel in Five Dock, Sydney, in July 1998. The Crown's case was that the appellant left a vehicle, approached the three men, and fired a gun multiple times at close range. The victims died the following day. The trial judge sentenced the appellant to life imprisonment on each murder count.

The appellant's defence at trial was one of alibi: he was not present at the scene. Both the Crown prosecutor and the appellant's experienced trial counsel declined the trial judge's offer to put manslaughter to the jury as an alternative verdict. The trial therefore proceeded on a "murder or nothing" basis.

On appeal, the appellant (represented by different counsel) challenged the conviction and sentences on several grounds, including whether the trial judge was obliged to leave manslaughter as an alternative verdict even when both parties opposed it, and whether adequate directions were given on alibi and on the use of post-offence conduct as implied admissions of guilt.

  • Whether a trial judge is obliged to leave manslaughter as an alternative verdict in a murder trial, even where no party raises it and both parties actively oppose it
  • Whether failing to leave a viable alternative verdict of manslaughter constitutes an error of law, and what consequences follow
  • Whether a first-trial jury's verdict of guilty of murder precludes consideration of manslaughter at any retrial
  • Whether the trial judge's directions on the appellant's post-offence conduct (such as changing appearance and leaving his home) were adequate, given the Crown's reliance on that conduct as an implied admission of guilt
  • Whether the directions given on alibi correctly stated the burden on the Crown

Decision

Manslaughter as an alternative verdict
The Court confirmed that a manslaughter alternative must be left to the jury whenever the evidence makes such a verdict viable, regardless of whether any party raises it or whether both parties object. This obligation flows from the judge's duty to direct the jury on the law. Failing to do so where evidence supports manslaughter constitutes an error of law.

Consequences of the error and the miscarriage question
Where such an error has occurred, the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice actually occurred. The Court also held that it is not permissible, when assessing whether a substantial miscarriage occurred, to reason that the jury's verdict of guilty of murder at the first trial forecloses any real prospect of a manslaughter verdict at a retrial. That reasoning would improperly discount the very alternative the jury was never given.

No viable manslaughter case on these facts
Despite confirming those principles, the Court found that no viable case of manslaughter was available on the evidence in this case. The ballistics evidence, the manner of shooting (multiple shots fired rapidly at close range, directed at vulnerable parts of the body), and a statement attributed to the appellant after the shooting together supported only one rational inference: an intention to kill. There was no evidence capable of supporting a manslaughter verdict, so the trial judge's failure to leave that alternative caused no actual miscarriage. The conviction appeal was dismissed.

Post-offence conduct directions and alibi
The Court confirmed that where the Crown relies on an accused's conduct after an offence as an implied admission of guilt (here, changing appearance, damaging the vehicle, and leaving his usual residence), directions fashioned on the principles in Edwards v The Queen (1993) 178 CLR 193 are ordinarily required. On alibi, the Court restated that the Crown must remove or eliminate any reasonable possibility that the accused was not at the scene of the crime, and that directions to the jury must accurately reflect that standard.

Orders Made

  • The appeal against conviction is dismissed.
  • Leave to appeal against the sentences imposed is granted, but the appeal is dismissed.

Key Takeaways

  • A trial judge must leave manslaughter as an alternative verdict in a murder trial whenever the evidence makes it viable, even if neither party raises it and even if both parties oppose it; this is a non-delegable judicial duty.
  • Where a viable alternative verdict is not left to the jury and the accused is convicted of the more serious charge, there is an error of law entitling the accused to a new trial unless the Crown establishes no substantial miscarriage of justice occurred.
  • In assessing whether a substantial miscarriage occurred, it is impermissible to treat the first jury's murder verdict as evidence that a manslaughter verdict was never a real possibility.
  • Post-offence conduct relied upon by the Crown as an implied admission of guilt ordinarily requires a specific jury direction following the principles in Edwards v The Queen (1993) 178 CLR 193 and Regina v Lucas [1981] QB 720.
  • On alibi, the Crown bears the burden of removing or eliminating any reasonable possibility that the accused was elsewhere; directions to the jury must accurately convey that standard, following Regina v Youssef (1990) 50 A Crim R 1.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules (NSW), r 4

Key Cases
- Gilbert v The Queen (2000) 201 CLR 414
- Gillard v The Queen (2003) 202 ALR 202
- Edwards v The Queen (1993) 178 CLR 193
- Regina v Lucas [1981] QB 720
- Regina v Youssef (1990) 50 A Crim R 1
- Pemble v The Queen (1971) 124 CLR 107
- Mraz v The Queen (1955) 93 CLR 493
- Gammage v The Queen (1969) 122 CLR 444
- Ross v The King (1922) 30 CLR 246
- Regina v Abusafiah (1991) 25 NSWLR 531
- Regina v Wilson [2005] NSWCCA 20
- Varley v The Queen (1976) 51 ALJR 243
- Regina v Evans & Lewis [1969] VR 858 (discussed, not followed)
- Regina v Hitchins & Elliott [1983] 3 NSWLR 318 (discussed, not followed)
- Regina v Elfar (2003) 115 A Crim R 64 (discussed, not followed)